Plastilite Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1965

153 N.L.R.B. 180 (N.L.R.B. 1965)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any
questions concerning this notice or compliance with its provisions.
Plastilite Corporation and Mable Kuklinski , Nancy S. Manzer,
bola ,A. Morris, Dorothy R. Vosburg , Gerald W. Morris, Clara
Schlotfeld, Janet Manzer, Myrtle Marshall, Frances Richard-
son, and Dorothy Smith , Individuals
Plastilite Corporation and Sheet Metal Workers ' Local Union
No. 3, affiliated with Sheet Metal Workers' International Asso-
ciation , AFL-CIO. Cases Nos. 17-CA-2367 and 17-CA-2425.
June 21, 1965
DECISION AND ORDER
On September 25, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National. Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Decision and a
brief.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following amplification :
Respondent's principal argument against the Trial Examiner's
8 (a) (1) and (3) findings is that the complainants' strike of Decem-
ber 12, 1963, was unprotected. However, the evidence shows that the
strike was due to the discharge of Max Lucore on the morning of
December 12, and that he was discharged because of a dispute regard-
ing his hours of employment. Although Lucore was a minor super-
visor, the discharge was not related to the manner in which he per-
formed his supervisory functions.-'
1 The dispute which precipitated Lucore's discharge arose because Lucore objected to
being on 24-hour call in case the machines for which he was responsible had to be reset.
153 NLRB No. 7.
PLASTILITE CORPORATION 181
Lucore directed the work of only two employees, and was also
responsible for maintaining the machines of his subordinates. How-
ever, other employees further along in the production process depended
upon Lucore's performance of these duties in order to meet their own
quotas. In addition to his assigned duties, Lucore had been extremely
helpful to them by building special mobile tables upon which they
could pack the parts they manufactured without bending over. This
made it easier for them to meet their quotas, and enabled them to per-
form their tasks with greater efficiency. Lucore not only relieved
employees when they had to leave their machines for short periods, but
on one occasion defended an employee accused of slow production by
showing the fault to be with the machine rather than with the employ-
ee's lack of skill. Thus the discharge of Lucore was a matter of legiti-
mate interest to many employees as it was substantially related to and
affected the terms and conditions of their own employment.
Accordingly, a group of employees thus affected (about 20 in num-
ber) decided to strike in protest.2 Before doing so, however, Mable
Kuklinski, one of the employees, met with Karl Louis, Respondent's
president; Paul Erskine, the highest ranking plant supervisor and the
person who discharged Lucore; and Fred Lambach, Respondent's
treasurer. She informed them of the employees' dissatisfaction with
the discharge and their decision to strike. Louis requested that Mable
ask the employees to remain at work and promised he would speak to
them later about the matter. The employees complied with this
request. But by 2:30 p.m., the customary hour when the day's work
ended and they turned in their production, Louis still had not spoken
to them or given any indication that he intended to keep his promise
to do so. Only then did they decide to follow through with their deci-
sion to strike. That Louis never intended to keep his promise is ade-
quately borne out by later events. When Louis saw them concertedly
stop work before quitting time, he merely asked them to wait a moment
while he gave out Christmas bonuses and made no attempt to discuss
the discharge. Finally, on Sunday, December 15, after repeated unsuc-
cessful efforts on their part to talk to management officials about the
discharge, Fred Lambach told them there was no use talking because
they had all been replaced.
On December 16 the strikers, including the 10 complainants, made
an unconditional application for reinstatement by December 18, on
which day they reported for work. There is credible evidence, relied
on by the Trial Examiner, that Respondent, although taking back the
other strikers, rejected the complainants because it was afraid of their
solidarity as a group and of the possibility that they would organize
2 These employees , almost all women, were unorganized prior to the strike. Shortly
after the strike began , they joined the Union.
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and cause another strike. Although they were recalled 3 months later,
they walked out a second time after 21/2 weeks of the discriminatory
working conditions to which they were subjected. They again returned
1 week later, after Respondent promised to restore the same working
conditions as those prevailing when the first strike began.
Respondent contends it had no obligation to reinstate any of the ap-
plicants after the first strike in December, because they had engaged-
so it asserts-in unprotected concerted activity when they struck
over the discharge of a supervisor. We have consistently held, how-
ever, that conditions of employment are involved, and a "labor dispute"
exists, if the supervisor's identity and capability have an impact on the
employees' job interests.3 Various courts of appeals have agreed that
employees may have a legitimate interest in the identity of a super-
visor .4 While we do not hold that employees may act concertedly to
protest the appointment or termination of every supervisor, even a
top-level management representative, it is our opinion that the facts
of this case bring it within the standards which we set forth in Dobbs
Houses, Inc., 135 NLRB 885, 888, to determine whether concerted activ-
ity related to such an object is to be deemed protected. We there said:
Each case must turn on its facts. Where, as here, such facts
establish that the identity and capability of the supervisor involved
has a direct impact on the employees' own job interests and on their
performance of the work they are hired to do, they are legitimately
concerned with his identity. Therefore, strike or other concerted
action which evidences the employees' concern is no less protected
than any other strike which employees may undertake in pursuit
of a mutual interest in the improvement of their conditions of
employment.
Because of the diligent manner in which Lucore performed his duties,
the willingness with which he assisted other employees, and the aid he
gave the employees in helping them meet their quotas, his discharge
substantially affected the strikers in the performance of their jobs.
The Court of Appeals for the Fifth Circuit has agreed that the dis-
charge of a supervisor may, under appropriate circumstances, be
"within the realm of proper employee interest." 5 Although it denied
s Dobbs Houses , Inc., 135 NLRB 885; Guernsey-Muskingum Electric Cooperative, Inc,
124 NLRB 618 ; Ace Handle Corporation , 100 NLRB 1279 , 1290; Container Mfg. Co., 75
NLRB 1082 , Phoenix Mutual Life Insurance Company, 73 NLRB 1463.
k Dobbs Houses , Inc v. N.L R B , 325 F. 2d 531 ( C A. 5), enforcement denied on other
Mounds, NL R B v . Guernsey-Muskingum Elecarical Cooperative, Inc., 285 F. 2d 8 (C A.
6) , N L R B v . Phoenix Mutual Life Insurance Company , 167 F. 2d 983 (C A. 7), cert de-
nied 335 U.S. 845 Cf. Ameiican Art Clay Company, Inc, v. N.L R.B., 328 F. 2d (C A. 7) ;
Cleaver -Brooks Mfg . Corporation v. N.L.R.B., 264 F. 2d 637 ( C.A. 7). But see N.L R B.
v. Ford Radio & Mica Corporation , 258 F 2d 457 ( C.A. 2) (dicta ) ; N L.R B. V Coal Creek
Coal Co., 204 F 2d 579 (C.A. 10) ; N.L.R.B. v. Reynolds International Pen Company, 162
F. 2d 680 (CA. 7).
5 N L R B. v. Dobbs Houses, Inc ., supra, footnote 4, at 538.
PLASTILITE CORPORATION 183
enforcement of Dobbs Houses, Inc., supra, it did so on the ground that
the means of protest was not "reasonably related to the ends sought
to be achieved," a ground not present in this ca*.° There, as the court
said, waitresses acted unreasonably by walking out without warning
at the height of the dinner hour. Here, in contrast, the employees gave
ample warning and finally struck only after it had become clear that
their attempt at peaceful settlement was in vain and their Employer's
promise to discuss the matter had been broken. There was no longer
any reason for them to believe that another attempt at discussion would
be treated any differently. They were thus left with the alternatives
of surrendering and accepting the discharge, or of carrying through
with their threat of a strike to protest it. This case is further distin-
guishable from the situation in Dobbs Houses because here, unlike that
case, the strike started at the end of the day and after the employees
had finished their production work.7
We further note that in denying enforcement in the Dobbs Houses
case, the Fifth Circuit distinguished two similar cases in which other
courts had upheld the reinstatement of employees who were discharged
for protesting supervisory changes." In the court's view, those cases
were distinguishable because no strikes occurred. The court in Dobbs
Houses felt that in the particular circumstances present in that case
the strike was an unreasonable method of protesting a proper employee
interest, and therefore was not protected .9 However, we must respect-
fully disagree with any rule which would base the determination of
whether a strike is protected upon its reasonableness in relation to the
subject matter of the "labor dispute." When a "labor dispute" exists,
the Act allows employees to engage in any concerted activity which
they decide is appropriate for their mutual aid and protection, includ-
ing a strike, unless, unlike the situation here, that activity is specifically
banned by another part of the statute,1° or unless it falls within certain
8 Ibid.
7 In this connection it should also be noted that the Supreme Court held in N L R B. v.
Washington Aluminum Company , Inc., 370 U . S 9, 14, that presenting a specific demand
is not a prerequisite to engaging in a protected strike . The Court said
The language of § 7 is broad enough to protect concerted activities whether they take
place before , after, or at the same time such a demand is made. To compel the Board
to interpret and apply that language in the niggardly fashion suggested by the
respondent here would only tend to frustrate the policy of the Act to protect the right
of workers to act together to better their working conditions.
8 N.L R B. v. Guernsey -Muskingum Electrical Cooperative , Inc. and N.L .R.B. v. Phoenix
Mutual Life Insurance Company, footnote 4, supra.
0 A similar distinction was drawn in American Art Clay Company , Inc. v. N.L R .B., and
Cleaver-Brooks Mfg. Corporation v N.L R B ., footnote 4, supra
10 See, e g., Section 8(b) (1) (B ) of the Act , which prohibits a labor organization from
restraining or coercing an employer "in the selection of his representatives for the pur-
poses of collective bargaining or the adjustment of grievances ." It does not appear from
the record that Lucore was such a representative.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other well-established proscriptions." See N.L.R.B. v. Solo Cup Coin-
pally, 237 F. 2d 521, 526 (C.A. 8), where the employer contended that
employees were engaged in unprotected activity when they stopped
working to protest the discharge of a fellow employee, because their
actions were "unreasonable, unlawful and arbitrary." The court,
rejecting this contention, said:
The employees might well have exercised better judgment by
sending a committee to the management at a more convenient
time for making their protest and demand, but we are unable to
conclude that ill judgment or lack of consideration add up to ille-
gality. Regardless of what we think about the activities of the
employees and the manner and time of making their protest and
demand, we must conclude with the Board that their protest came
within the protective purview of the Act.12
Nor does the reasonableness of the decision to strike aid in determin-
ing the existence of a "labor dispute." Thus, in Washington Alumi-
num, the Fourth Circuit found the strike to be "unjustified" and so
unprotected,13 but the Supreme Court said :
At the very most, that fact [that the company was already trying
to correct the problem which caused the strike] might tend to indi-
cate that the conduct of the men in leaving was unnecessary and
unwise, and it has long been settled that the reasonableness of
workers' decisions to engage in concerted activity is irrelevant to
the determination of whether a labor dispute exists or not.14
It is therefore clear that the determination bf whether a "labor dis-
pute" exists does not depend on the maolner in which the employees
choose to press the dispute, but rather on the matter they are protesting.
Where a "labor dispute" exists, the employees may engage in a peaceful
primary strike or any other lawful manner of protest and still retain
the protection of the Act.
In sum, we find, as did the Trial Examiner, that the discharge of
Lucore had an impact on the strikers in the performance of their jobs
and was therefore within the realm of their proper concern. They
were thus free to act as they did to protest the discharge. There is
IlE g., strikes which are unprotected because they are otherwise unlawful (Southern
Steamship Company v NL R B., 316 U S 31), violent (NL.R B v. Fansteel Metallurgical
Corporation, 306 U.S. 240), or in breach of contract (N L R.B. v. Sands Manu factio Ing
Co, 306 US. 332), and activities which are "indefensible" because they evidence a dis-
loyalty to the employer (N L R B. v. Local No. 1229, International Brotherhood of Elect;x-
cal Workers , 346 U S 464, 477)
U See also Tomar Products, Inc, 151 NLRB 57.
15 291 F. 2d 869
14 370 U.S. 9 at 16. See also N.L.R.B. v Mackay Radio d Telegraph Co , 304 U S.
333, 334.
PLASTILITE CORPORATION 185
nothing in the record of this case to show that their peaceful strike fell
within any category which would make it unprotected. We accord-
ingly find that the strike was protected by the Act. We do not adopt
the Dobbs Houses standard of "reasonableness" as declared by the
Fifth Circuit,',' but even if we deemed that standard to be applicable,
we would nevertheless find on the facts of this case, for the reasons set
out above, that the employees were reasonable in finally striking when
they did.
We have carefully considered all other arguments made by Respond-
ent, and find them without merit. Accordingly, as stated above, we
agree with and adopt the Trial Examiner's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Plastilite Corporation, Omaha,
Nebraska, its officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order, as so
modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2(b) and those subse-
quent thereto being consecutively relettered :
"(b) Notify the above-named employees, if presently serving in the
Armed Forces of the United States, of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
2. Add the following immediately below the signature line at the
bottom of the notice attached to the Trial Examiner's Decision.
NoTE.-We will notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their right
to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed
Forces.
15 See footnote 4, supra
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
The consolidated cases above , with all parties represented , were heard before Trial
Examiner A. Norman Somers on April 29 and 30, 1964, on complaint of the General
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel alleging, and answer of Respondent denying, discrimination against the 10
Charging Individuals in violation of Section 8(a)(3) and ( 1), and other acts of
restraint and coercion , in violation of Section 8 (a) (1), of the Act.'
The evidence in the case consists solely of that presented during the General Coun-
sel's presentation , Respondent having chosen to rest its own case thereon with the
claim that it does not add up to a violation . The parties waived oral argument, and
the General Counsel and Respondent submitted briefs, which have been duly con-
sidered. Also , pursuant to my telegraphic inquiry of the General Counsel for his
position , in the light of the record , on an allegation in his complaint charging
Respondent with a continuing failure to take adequate reinstatement measures, the
General Counsel wired a reply and the Respondent a rejoinder thereto, which have
been duly considered .2 On the entire record and my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
Respondent is a Nebraska corporation engaged at its plant in Omaha in the manu-
facture and sale of plastic products, which it ships outside the State in amounts exceed-
ing $50,000 annually. It is not disputed and I find that Respondent is engaged in
interstate commerce within the meaning of the Act.
The Charging Party in Case No. 17-CA-2425, hereinafter called the Union, is a
labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Issues
As mentioned before, the record consists solely of the evidence presented during
the General Counsel's case-in-chief, Respondent having rested its own case thereon
with the claim that it does not add up to a violation.
Aside from some alleged "independent" 8 (a) (1) preceding the events giving rise
to this proceeding, the case concerns Respondent's alleged discrimination against the
complainants for engaging in protest walkouts, the first on December 12, 1963, by
the 10 complainants (along with the other employees in their department) in protest
over the discharge of one Max Lucore, and the second on March 26, 1964, by 8 of
the 10 complainants (the other two having been out sick that day) in protest over
the alleged discriminatory strictures under which they were taken back, for which
Respondent suspended them for a week without pay and finally again took them back
on April 3, with the warning of discharge in the event of another walkout. The
General Counsel alleges as violations of Section 8(a)(3) and (1): (a) the original
refusal to reinstate the 10 complainants after the first walkout; (b) the alleged dis-
criminatory restrictions under which they were taken back on March 9; (c) the walk-
out on March 26 of 8 complainants in protest over those restrictions, which the
General Counsel claims was a "constructive discharge"; and (d) the 1-week suspen-
sion for engaging in it .3
i Chronology:
Case No. 17-CA-2367: Charge and amended charge filed January 16 and February 27,
1964, respectively. Complaint issued March 13, 1964.
Case No. 17-CA-2425. Charge and amended charge filed April 10 and 14, 1964, respec-
tively Complaint issued April 15, 1964
Order consolidating cases issued April 15, 1964
2 They are basically amplifications of the briefs and so have not been added to the
record as exhibits. They have, however, been included in the "formal" file of this con-
solidated proceeding (i e , the one available to the public).
3 The General Counsel's residual challenge of the adequacy of the restorative measures
taken on April 3 is dealt with in the section of this Decision entitled "The Remedy."
For clarity concerning what is embraced by the separate complaints, we note: (a) The
charges and complaint in Case No. 17-CA-2367 cover the conduct up to the original
refusal to reinstate the complainants after the first walkout in December 1963 (b) The
charges and complaint in Case No. 17-CA-2425 cover Respondent's conduct on and after
March 9, 1964.
PLASTILITE CORPORATION 187
B. Conversat,ons concerning the Union preceding the walkouts
Several months before the first walkout in December, Respondent approached
various of its personnel, promising to give them what another company gave its
employees under a contract with the Union, and requesting that they report to it any
talk that they might hear among employees concerning the Union. These actions
are not related to the walkout of December, since that occurred before the employees
were organized or the Union was yet in the picture. Although I was at first inclined
not to take cognizance of Respondent's earlier conduct as removed from the main-
stream of the case, I now realize that that part of the totality cannot be ignored, since
it involves conduct aimed at the Charging Party in Case No. 17-CA-2425 (supra,
footnotes 1 and 3), which has a bearing on attitude and motivation insofar as these
are involved in the main issue, and also on the scope of such remedial measures as
the resolution of the main issues may warrant.
Four employees testified to Respondent's promises to match what the employees
of the other company obtained under contract with the Union. These are Mable
Kuklinski,4 Clara Schlotfeld, Iris Life, and Dorothy Vosburg. The latter two were
rather ambiguous in regard to whether Respondent (in each instance through Fred
Lambach, its treasurer and one of the owners) 5 said its employees would make or
were already making as much as the employees of the other company. I questioned
Vosburg rather closely on that point, and she finally said Lambach's reference, when
he spoke to her, was to what the girls were already making. I resolve the ambiguity
in Life's testimony the same way. There was no impropriety in Respondent's com-
paring the existing working conditions of its employees favorably with those of a
company under contract with a union (absent a threat to worsen conditions if the
employees should organize), and so I find no violation in the statement of Lambach
as testified to by Life and Vosburg.
On the other hand, Kuklinski and Schlotfeld testified to separate instances impli-
cating Respondent in promises to bring wages up to those at the unionized plant as
an inducement to its employees to refrain from joining the Union. Kuklinski, early
in September, told Lambach and Karl (Bud) Louis, the president (supra, footnote 5)
that she "had read the Airlite contract," having been shown it by a friend and gotten
her sister, who works there, to read it. Respondent was then expecting a new "pin-
ning machine," which was to be run by Joyce Maloney. They asked Kuklinski what
the rates of pay were on the various jobs on it, and she told them. They stated in
her presence that they would have to bring Maloney's pay up to that rate.6 Also,
Louis said "they would have to give the Plastilite girls what the Airlight girls got or
they would want a union." Schlotfeld testified that Fred Lambach "came up to . . .
where Joyce [Maloney] and Gladys [Crawford] were pinning [and] said whatever
Airlite gets, I will give you girls because he didn't want no union." 7
In the conversation with Kuklinski concerning the Airlight contract, Louis told
her that "if [she] heard the girls talk union to let him know." Two other witnesses
testified to having been given similar instructions-Lola Morris by Paul Erskine,
who is the highest ranking supervisor below the owners,s and Max Lucore by Lam-
bach. A violation cannot be predicated on either one: in Morris' case because the
time she fixed, "the summer of 1963," is partially outside the 6 months' limitations
period under Section 10(b) (supra, footnote 1), and it is the General Counsel who
4 Kuklinski's job as a leadwoman and assistant to Frances Lucore, a supervisor, is de-
tailed in the ensuing section. -See infra, footnote 14.
5 The other owners are Karl Louis, the president, and Carl Lambach, father of Fred.
The father lives in Iowa and is not constantly in the plant as are his son and Louis.
Unless otherwise indicated, the surname Lambach, when it appears alone, refers to Fred,
the son.
8 Kuklinski testified, "Karl Louis told Frederick they would have to pay Joyce $1.70
to run the machine and which they did " (The reference to what "they did" was stricken
as not being part of that conversation.)
7 Kuklinski testified her conversation with Louis and Lambach was in September 1963
Schlotfeld testified the conversation she heard was "in the summer of 1963." Its logical
sequence wo, 'd be after the one in which Kuklinski mentioned the Airtight contract to
Respondent, so that, as is here found, both conversations took place in September
8 The stenographic transcript of the hearing erroneously refers to him as Erslome, and
hereby corrected accordingly.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must bear the onus of that indefiniteness (which in her case is not circumstantially
cleared up as in the case of the conversation testified to by Schlotfeld, supra, foot-
note 7),9 and in Max Lucore's case, because though the conversations with him were
well within the 10(b) period, he was a supervisor, a minor one to be sure,10 but a
supervisor nevertheless, and under controlling authority, it is not a violation of the
statute for an employer to issue instructions to a supervisor to engage in acts of
interference, so long as they remain "unexecuted." 11 The conversations with Morris
and Max Lucore are accordingly noted not as unfair labor practices, but as eviden-
tiary items on attitude and motivations relevant to the later events.12
Lola Morris testified that Erskine asked her if she "ever heard anything about
union being talked about in the plant" and that "if [she] would come to him or to
Karl Louis, that it would be a feather in [her] hat, and that if there was a union to
be brought in, Karl Louis was going to put a padlock on the doors." Lucore testified
that in October 1963, "after Airlite signed their contract," Lambach told him one of
its own erstwhile employees was now working there and that she "was tied in with
union activities down at Airlite' and "if [he] notice[d] any union talk going on out
in the plant, to notify him, he wanted to stop it or get rid of them." In December
1963, about 2 weeks after Lucore was discharged (that being the event which touched
off the December 12 walkout), Lambach paid a visit to the Lucore household
(Frances Lucore, Max's wife, being supervisor of the girls who walked out). In the
course of it Lambach had a conversation with Max, in which as related in another
context, he said he would like to call the then nonreinstated complainants back to
work, and also:
He asked me if there was union talk in the plant. I said yes, ever since we
moved in the new building there was union talk going on . . He said, "Why
didn't you tell me. I would have stopped it or got rid of it."
I find Respondent to have transgressed the permissible limits of the Act by the
promises to match the conditions obtained in a unionized plant as an inducement to
refrain from joining the Union and by the instruction to Kuklinski to inform on the
union activities of her fellow employees.13
C. The walkout on December 12 and events culminating in the refusal to reinstate
the 10 complainants on application until March 9
1. The discharge resulting in the walkout
Max Lucore was discharged the morning of Thursday, December 12. The action
climaxed an altercation between him and Paul Erskine, his superior (supra, foot-
note 10) which arose out of Lucore's complaining about being called in to service
the machines on an around-the-clock basis, without limitation as to hours. Lucore's
job was to set the machines that turned out the plastic parts used by the girls in their
work. Though he had under him only the two machine operators (Gerald and Lola
Morris, supra, footnote 10), the girls who worked on bobbers and pinners depended
for their quotas on how the machines turned the parts out. Max would seem to have
been solicitous of their interests- he had helped ease their labors and step up their
productivity by building mobile tables for them to pack from, so that they would not
have to "bend clear over for [the boxes]" while packing, and he had "stood up" for
one of the girls accused of slow production by showing the fault to lie with how
someone had changed the mold on the machines against his advice. (Max had no
mean opinion of his knowhow in these matters.) As for his two immediate sub-
ordinates, who operated the machines he serviced (Lola and Gerald Morris), Lola
testified to the cooperation he would give her and her husband Gerald, when either
had to leave the machine for a personal need, of tending it until they returned (draw-
ing an invidious comparison on that score with Max's successor who has not so
cooperated, with them at least).
Lola Morris testified Erskine spoke to her "before the machines were moved to the
new plants," but the record gives us no inkling concerning when that took place.
10 His authority was only over the two machine operators, Lola and Gerald Morris. He
himself was under the supervision of Erskine
11 See Tidelands Marine Service, Inc., 140 NLRB 288, footnote 7.
12 Within the limitations, of course, of Local Lodge No. 1424 International Association
of Machinists, AFL-CIO (Bryan Manufacturing Co.) v N.L F B., 362 U S 411
13 Kuklinski did not do so, but exemplifying the restraining tendency of such an instruc-
tion was Kuklinski's telling the girls that in their own interest they had better not be
caught talking about the Union.
PLASTILITE CORPORATION 189
2. The walkout in protest over the discharge
Lucore spoke about the discharge to Frances, his wife, who was the floorlady or
supervisor of the gluers and pinners, and Mable Kuklinski, her assistant.14 Mable
said that the discharge "wasn't fair," and that the girls should "walk out and get the
situation settled." Frances Lucore said "she couldn't ask the girls because she was
their boss." Mable then started a chain of communication among the girls, who
reacted to Max's discharge in the same manner. She then told President Louis that
"all the girls was going to walk out." He took her to see Lambach, who was then
in Mrs. Lucore's office, and they called in Paul Erskine. The latter was at first dis-
posed to apologize, but Louis, after speaking privately to Erskine, asked Mrs. Lucore
and Mable as a "personal favor" to get the girls "to stay at work," and he promised
that he would come out and "talk to them." They complied and the girls went on
with their tasks. The hours went by and the girls were getting restless. By 2:30,
which was an hour before quitting time but which "ended the girls' day to turn the
stuff in," Louis had still not come out, "so everybody left." He came by and asked
if it was 3:30. Floorlady Lucore explained, "No, Bud, its 2:30, but we waited for
you to talk to us, so we are leaving." He asked them to wait, went back to the office,
and returned with the Christmas bonuses of Floorlady Lucore and Mable Kuklinski
as well as bonuses for the girls who had done distinguished work. On handing them
over, he told them "to feel free to come back" the next day, and that he had a Christ-
mas present for them. The entire crew of girls working under Floorlady Lucore and
also Max's machine operators, Gerald and Lola Morris, then walked out.
They repaired to a bar where, among themselves, they aired their various griev-
ances, some about quotas, and others (like the gluers) about ventilation. ("Every-
body had complaints.") They decided that before writing them out, they would
contact Carl Lambach, father of Fred and a co-owner of Respondent (supra, foot-
note 5). Mable called him at his home in Iowa and told him "a terrible thing had
happened at the plant, they had fired Max and we all walked out." He suggested
they go back to work the next morning, Friday, and that he "would come over Mon-
day and talk to [them] and try to settle it." She said the girls could not return until
they "had the situation settled," and asked when Fred, his son, would be back. He
said Sunday, and she said she would contact him. The girls then agreed they would
wait until Sunday, when they would meet at the home of Frances Lucore.
That night Mable and several other strikers (identified in a later context) visited
the plant, where she informed the few employees on that shift (they worked on the
machines and did not do bobbing or pinning) of the walkout eariler that day. None
of them joined.
3. Respondent's statement to the strikers on December 15 that they had
all been replaced by a new crew
On Sunday at 2:30 p.m., all who had walked out showed up at the Lucore home
except three. These were Ethel Micek (whose special significance will later appear),
Gladys Crawford, who is Ethel's sister, and an employee identified as "Sophie" (pre-
sumably Marancic, the only employee by that name, and concerning whom there is
no further information in the case). During that meeting, as she had told his father
she would do, Mable called Fred Lambach, and told him the girls "would like for
him to come and talk to [them]." According to Mable's undenied testimony, he
replied he "couldn't do that ... that our jobs were filled, they had a new crew coming
in Monday and some coming in Tuesday." She reported this back to the group, and
at their suggestion, called Lambach again and told him his father had promised to
be down to talk to them on Monday. He replied that they had not gone back to
work on Friday as his father had asked them to do, and so he would not be down.
She said "the only thing we can do is go downtown," and he replied "that was [their]
privilege." They sat down and wrote out proposed revisions of their quotas for
bonus purposes, but, as Mable testified, "we figured we couldn't talk to Karl Louis or
14 Kuklinski had no power to administer or recommend discipline, or warn employees.
Her function would seem basically to set the work up as instructed by the floorlady and
to facilitate it by supplying the girls with what they needed. Respondent, in its brief,
names as the supervisors of Respondent (apart from its officers, Karl Louis and Fred
I ambach, who engaged in supervision themselves) Paul Erskine and Frances Lucore, mak-
ing no claim that Mable Kuklinski was one. It is found that she was not such, and
that her job was that of expediter or leadwoman.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frederick Lambach, so we had to have someone we could talk to." Accordingly,
her husband called one Pete Bell, "who knows about unions and grievances and
that [sic]."
4. The resort to the Union; the requests by letter sent Monday, December 16,
for reinstatement of the strikers
The next morning the entire group met at the Federal Building, with the excep-
tion this time of still a fourth girl (Marjorie Glass, concerning whom, as with Sophie
Marancic, there is no further specific information). This (not counting the Lucores)
left 17 in the ranks of the strikers. Bell steered the entire group to a representative
of the AFL-CIO, who handed out union cards to them. After they signed, he sent
them to Les Foreman, the Union's business representative. With their authorization,
Foreman that same day, December 16, sent Respondent a letter by registered mail
special delivery, requesting exclusive recognition on the basis of a majority card
designation, and, specifically naming these 17 persons, asked for their reinstatement
"by 7 a.m, Wednesday, December 18, 1963." (In addition, he named the Lucores,
who are not here involved. Max never came back, and Frances returned on
January 10.)
Early the next morning, Business Agent Foreman called at the plant and asked
President Louis to "sit down with a committee of his employees and the Union and
try to adjust any grievances they might have." Louis said he would be "happy" to
do so "even yet that day," but "wanted to talk to his attorney first." On returning to
his office, Foreman met with the strikers again. They informed him that some of
the girls were called back on the job. As later appears, these were all but the 10
Charging Individuals. The next morning, Wednesday, as he had stated in his letter
sent out on Monday, Foreman went with the 10 complainants to Respondent's office.
Respondent said it would not take them back because all the jobs were filled.
On returning to his office that afternoon, Foreman found waiting for him a letter
sent him by President Louis the previous day after their meeting, in which he rejected
the offer to meet with the Union, because he did not "think [it] represent[ed] our
employees."
5. The staffing of the force between the walkout and receipt
of the reinstatement request
The evidence concerning the filling of jobs of strikers to account for the rejection
of the 10 complainants is most fragmentary. Although Lambach, on Sunday after-
noon, turned down Mable's request to meet with the girls on the ground that by then
their "jobs were filled [by] a new crew," there is no competent evidence in the record
in support of this assertion or indeed to show that Respondent had any new employ-
ees lined up at that time for such purpose 15 So far as the competent evidence shows,
Respondent had contacted but one person to go to work, and that was one of the
strikers, Ethel Micek. According to her undenied testimony, President Karl Louis
called her on Saturday night and "asked [her] if [she] would come back in place of
Mable"-a proposal which meant an advance in wage rate from $1.40 to $1.70 an
hour. She told him she "would think it over and tell him Monday morning." The
15 On January 27, 1964, Respondent sent the Regional Office a letter in answer to the
charges, reciting, among other things, its position in regard to the 10 Charging Individuals
and why they were not taken back. When the General Counsel opened the case by offer-
ing, as his first exhibit, the "formal" exhibit containing the charges and pleadings, Re-
spondent asked that its letter and certain attachment thereto also go into the record.
I admitted this as Respondent's Exhibit No. 1, with the reminder that:
.. . Nothing introduced thus far has any character as evidence of the internal con-
tents What we have, then, is really a series of statements of position of the General
Counsel and the Respondent, and it's in the record only for the purpose of indicating
what positions the parties have taken up to this stage of the proceeding . . . But
actual evidence is something which has yet to be introduced. [Emphasis supplied.]
Respondent in its brief nevertheless cites some of the statements in its letter as affirma-
tive evidence of its contents It has done so without any showing to take it out of the
rules of evidence which render self-serving out-of-court statements incompetent as evidence
in support of their content Where appropriate, certain portions in the letter will be noted
as admissions against interest on the part of Respondent. Wigmore, Evidence, 3d ed.
(1942) rule 128. It is another matter for Respondent to cite its own statements as self-
probative evidence. Ibid.
PLASTILITE CORPORATION 191
only contact with anyone else that weekend, as far as the record shows, was with
Gladys Crawford, Ethel Micek's sister. She testified she called Fred Lambach Sunday
night (which would be later than Lambach's conversation with Mable) to ask for her
job back, and that he told her to see President Louis the next morning.
On Monday morning, Ethel Micek called with her husband and accepted the offer
to take Mable's job. Gladys Crawford was taken back by President Louis, but only
after she denied (on his asking her) that she "was one of the girls that went back
out to the plant that [Thursday] night" (although if she is the "Gladys" referred to
by Mable Kuklinski, as she presumably is, she would appear to have been at the plant
that night with Mable and four other complainants). Also on the job with Micek
and Crawford on Monday morning were, as to be inferred, the other two who had
dropped out of the ranks of the strikers by then-Sophie Marancic 16 and Marjorie
Glass. As to how many altogether were working that day, Micek thought the num-
ber was "16 or 17," and Crawford "15 or 16." On the other hand, Micek testified
that the number of new girls on the job that day was "four or five," which would
bring the total on Monday to 8 or 9-or 12 or 13 below the original force. Respond-
ent received the Union's letter Tuesday morning before work began. This appears
from the testimony of Iris Life. She was among the 17 strikers named in the Union's
letter of Monday. As a result of a later described call from Ethel Micek, she and
3 others of the 17 named in the letter reported before working time and, in the con-
versation with them, President Louis stated that he had already gotten the Union's
letter. In addition to those, 3 more of the 17 named in the Union's letter of Decem-
ber 16 were put back. They too, in dissociation from the rest of the persons named
in the Union's letter, had reported on Tuesday morning, asking for their jobs back.
The evidence indicates that beginning with Monday morning Respondent was
making a selective recall of its employees on the assumption, rather implicit in Mable
Kuklinski's two calls to Fred Lambach on Sunday, particularly the second, that they
all wanted their jobs back. On Monday morning, President Louis, as Micek testified,
handed her the cards of all the girls and asked her "who [she] thought were good
workers to be called back." Micek had already told Louis that so far as she was
concerned Mable was out; indeed, that if Mable went back, she would walk out. So-
We went through them, and the ones that I thought would be good to call back
he gave me the cards. When he came to Mable Kuklinski's name he just set
it aside. Then when he came to relations of hers, I told him they were relations
and he set them aside. [Emphasis supplied.]
The proscription by kinship extended to Mable's four relatives, who are complain-
ants in this case along with her-Janet Manzer, Nancy Manzer, Myrtle Marshall,
and Clara Schlotfeld. Of the remaining five complainants, three had been named by
Mable as having gone with her to the plant Thursday night-Gerald and Lola Morris,
the machine operators, and Frances Richardson.17 The importance with which
Respondent vested this incident appears in the fact, previously mentioned, that Presi-
dent Louis took Gladys Crawford back only after she assured him she was not "one
of the girls that went back out to the plant that [Thursday] night." This last and her
kinship to Micek put her on a different plane from Mable and her kin. Crawford
testified:
He [Louis] also said that he was making a new rule, that from now on nobody
would be hired that was related, but he would make an exception to me, I am
Ethel's sister, because I had worked there, so I went back to work.
The rehiring, beginning with President Louis' leaving the selection with Micek,
would seem to have been on the basis of a chain of communication starting with her.
What we have on it is the earlier mentioned testimony of Iris Life, who did go back,
and also of Dorothy Vosburg, one of the complainants, who did not. Life testified
that on Monday, when she got home after the meeting of the group with the union
representative, there was a message for her to call Ethel Micek. She called Ethel,
who asked her if she wanted her job back, and on receiving a "yes" answer, told her
to report at the regular time next morning at 7. As stated previously, Life reported
20 minutes earlier, along with three more girls named in the Union's letter, who
18 Her surname is derived from the list of 11 "Re-hires" appearing in Respondent's
previously mentioned letter to the Regional Office (supra, footnote 15)
17 Mable also named two others: (a) the "Gladys" previously mentioned, and (b) com-
plainant Clara Schlotfeld, who was proscript anyway because of her kinship to Mable.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were put on that day-Joyce Maloney, Frances Shur, and one "Connie." 18 Joyce
told Louis they "had been up town and signed union cards," and he replied he knew
because he had gotten the Union's letter.
In the conversation on Monday, Ethel Micek asked Life how to get in touch with
Joyce Maloney and complainant Vosburg. Vosburg testified that that same day Life
called her, saying that Ethel requested that she ask her and Joyce if they wanted their
jobs back. Vosburg replied she would "think about it first." She further testified
that she called Mable Kuklinski and asked her if she too had been called about going
back to work. Mable replied she had heard nothing. Vosburg testified that she took
no further action on Iris' call because she "isn't my boss, I was waiting for a call from
Bud or Mr. Lambach or Frances" and also that she thought "we were going to go
back and we should all go back together."
6. The need for the services of the complainants
during their nonreinstatement
Floorlady Lucore testified that by January 10, when she got back, all the original
21 workplaces in her room were filled. Gladys Crawford testified that that was
indeed the fact on Wednesday, December 18. Respondent in its letter of January 27
to the Regional Office (supra, footnote 15) states that it had by then filled every
workplace that had been left vacant by the strike, and that its force at that time was
larger than at the time of the walkout. As later appears, Respondent on March 9
took back the remainder of the strikers-i.e., the 10 complainants-without dropping
any other employee. This denoted an expansion of operations, which enabled
Respondent to absorb the old employees and the newscomers. The record per-
suasively indicates Respondent needed and wanted the 10 complainants back even
earlier, and that the sole deterrent was Respondent's fear of their solidarity as a
group. Floorlady Lucore testified that after her return on January 10, she spoke to
Lambach about the need for more hands to take care of the large volume of orders.
According to her undenied testimony:
I said [to Fred Lambach] "Why don't we call the experienced people back? It
wouldn't take us long to get them filled." . . He said, well, he didn't want to
call them back because Paul [Erskine] and Bud [Louis] were afraid they would
organize and cause another strike.
About a month after her return, she again spoke about the need for additional help,
this time to both top officials. They said they "could use them," and that "they would
like to call these people back but they wanted to wait and see what the N.L.R.B.
said." (The charges were then pending. Supra, footnote 1.) Other evidence indi-
cates that Respondent wanted, and as this would imply, had a need for, the 10 com-
plainants even earlier. In the previously mentioned conversation at the Lucore home
2 weeks after Max's discharge, and hence about a week after Respondent rejected the
Union's request for their reinstatement, Lambach told Max, "Well, I would like to
get on the telephone and call all the people up and have them come back to work."
Respondent's actions from the time the younger Lambach, on Sunday, told Mable
he had filled all the strikers' jobs with a new crew, rather indicate that it was assuming,
as the nature of her second call to Lambach on Sunday fairly implied, that the group
wanted their jobs back, and with that as the premise, was using a selective method of
recall in order to eliminate those deemed the most militant in the group. This dis-
posed of Mable herself, whose job Respondent offered Ethel Micek on Saturday
night as an inducement to come back, and her four relatives, as well as the three
additional complainants who accompanied her on Thursday night in the effort to get
the night shift to join in the walkout. As to the remaining two complainants, Vos-
burg and Dorothy Smith, they (as specifically shown in Vosburg's case from her own
testimony, and as is to be inferred in Smith's case) stood by their original request for
reinstatement sent out by the Union on their behalf on December 16. Notably,
despite Lambach's statement to Mable on Sunday, December 15, that he had a whole
new crew lined up, every striker was nevertheless taken back who sought her job
back through channels outside the concerted group. This was so, of course, in the
cases of the four who had abandoned the group by Monday morning and were not
named in the Union's letter sent out that day. The seven other than the complainants
who appeared in the Federal Building and were named in the Union's reinstatement
request left the group and applied individually for their jobs on Tuesday. We have
is Connie Trimble, according to the "Re-hires" listed in Re9pondent's letter of January 27
to the Regional Office (supra, footnote 15).
PLASTILITE CORPORATION 193
already mentioned the four, who include Iris Life and Joyce Maloney, that reported
for work Tuesday morning, after Micek's call the previous day to Iris. The remain-
ing 3 of the 17 named in the Union's reinstatement request of December 16, as stated
earlier, also disassociated themselves from the group, as would appear from Respond-
ent's letter to the Regional Office (supra, footnote 15), which states that:
On Wednesday, December 18, 1963, the Company brought back to work 3 more
old employees who had asked for and were promised their old jobs on the pre-
vious morning. [Emphasis supplied.]
All of the foregoing would indicate that even if Respondent on Sunday had an
entire new crew lined up to go to work on Monday and Tuesday, as Lambach told
Mable it had, it did not in fact deem them to be replacements for the strikers. This
is shown by its course of action beginning with Micek's acceptance on Monday of
the offer made to her on Saturday night to supplant Maable. On Monday, it gave
her free rein to contact such girls as were acceptable for coming back. Her hostility
to Mable as she expressed it to President Louis fell in line with Respondent's own
punitive intent toward her as the leader of the concerted group, whom he ruled out
along with her four relatives.
The foregoing, when considered with the absence of affirmative evidence in sup-
port of Fred Lambach's statement to Mable on Sunday that he had then lined up a
new crew in place of the strikers, would indicate that Respondent from that time on
did not in fact deem the girls as any longer on strike, and that the statement to Mable
was intended to express Respondent's retaliatory attitude to the group for having
struck. Its action on Monday in taking measures to bring all except a proscribed
group back to the job is inconsistent with Lambach's suggestion to Mable that
Respondent felt committed to any new crew it might have lined up or that it regarded
them as permanent replacements of the strikers. Respondent's actions fairly suggest
that it regarded any new hires as either standing by to step into the places of those
already slated for elimination or as additions to the staff because of expansion in
orders. Indicative of the last are Lambach's statement to Max Lucore only a week
after they were refused reinstatement that he wanted to call them back and his state-
ment to Floorlady Lucore early in January that he was deterred from doing so because
Respondent feared that they would "organize and cause another strike."
It would thus appear, as indeed the evidence, on fair balance, calls upon us to
conclude, that the Respondent, on Wednesday, December 18, refused to reinstate the
10 complainants as requested in the Union's letter of December 16, not because it
deemed their jobs filled but because of apprehensions over that group's militance in
the future.
D. The return on March 9 and conditions leading to the second walkout
and suspension therefor
On March 9 (after the charges were filed in Case No. 17-CA-2367 and a few days
before the complaint issued), the complainants returned to work pursuant to a letter
from Respondent on March 3 offering to take them back "at the same pay, seniority,
and other working conditions as you had when you left the company."
At the hearing, witnesses for the General Counsel unreeled a compendium of
grievances concerning the manner of their return, the cumulative effect of which
caused them (except two who were then out sick) to walk out on March 26. Some
were real enough and others would seem more the reflection of the torment brought
on by the basic element in their return which hurt most-their being put far away
from their customary work place and subjected to total isolation and ostracism.
That went for the 8 complainants other than Lola and Gerald Morris, who went back
to their old places at the machines, but, like the others, found themselves subjected
to new restrictions. The net of the above is that the General Counsel claims that
Respondent did not give complainants the full reinstatement which he contends was
Respondent's obligation and he also claims that the walkout, provoked by the cumu-
lative effect of the changed conditions, was a "constructive discharge."
The detached viewer may not see the situation in quite the horrendous terms
described by he General Counsel's witnesses. But there is a hard core in the claim
of discriminatory conditions. The eight complainants other than the Morrises were
shifted to the "bucket department" at the extreme opposite end of the plant. They
w-re told this was because there was not room for them in their regular working
place. As later appears, this difficulty was demonstrated to be less than insuperable
when Respondent, on April 3, a week after their walkout on March 26, put them
796-027-66-vol. 153-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back to the regular area for their operation. Five of the new employees were then
sent to the "bucket" room, but free of the restrictions newly imposed on the returned
strikers.
When they reported on March 9, they were received by a stranger to them, who,
introducing himself as James Reynolds of the Midwest Employers Council and as
"represent[ing] the company," said he opposed "what [Union Representative Foreman]
stood for," that Respondent "had to take some back but not all of [them]," that it
felt it "was in the right" and would "take [them] to court," a matter which would
consume "about two years." Saying there was no room for them in their regular
working area, he told them they would be put in separate quarters aat the other end
of the building, that a separate entrance was provided for them and they could use
no other, and that during working periods, they were not to leave that room for any
reason. At the new quarters, they were called together by Frank Maycock, the book-
keeper, who told them they could no longer have lunch or coffee during breaks at
the worktables. Since that was the accustomed place, a girl in the group (Dorothy
Smith) asked him just where and how they were supposed to manage. He replied,
"I don't care, go out and sit in the car [a hardly usable alternative in view of the cold
weather, of which the same girl reminded him] or stand in the corner."
Floorlady Lucore, with Kuklinski's assistance, "got the girls lined up to start to
work." This was the last of her supervision over them (i.e., until their return on
April 3, after the second walkout). She was under orders not to go to them, and
under the restrictions imposed, they could not go to her. Mable was put to packing
buckets, and for such problems as might arise, she and the others were to consult two
girls in the bucket department (identified as Tossie and Eileen), who, apart from any
question of their capacity or authority to be of any help in making the difficult adjust-
ment to unaccustomed surroundings and restrictions, would seem hardly to have had
the sympathy or understanding it needed.19 The restrictions against leaving the area
for any purpose apparently did not yield even to considerations of efficiency arising
out of the literalness of the stricture. The girls had always been free to leave the
working area in order to pick up needed equipment, such as materials, pins, buttons,
parts, etc. Though it was part of the duties of the floorlady's assistant to supply the
girls with them (supra, footnote 14) as is reasonably to be assumed, there are limits
to the availability of a single person for an entire group. Thus, even when the floor-
lady's assistant (at that time Mable) used to work in the same room with them, they
were free to leave in order to pick up equipment. Now they had to rely for these
materials solely on Floorlady Lucore's assistant at the other end of the building,
Joyce Maloney (Mable Kuklinski's second successor to that job, Ethel Micek having
proven not quite up to it), and whatever the exigency, they simply could not leave the
room to pick up these materials.
Such an atmosphere hardly enhanced their ability to adjust to the new surround-
ings, with its attendant physical discomforts. They found the area dirty and crowded,
with no place to hang their coats or wraps. The buckets were stacked high up along-
side of where these girls were working, and when someone picked up a bucket, the
rest would tumble down in all directions, one of them landing on Dorothy Vosburg
and dislodging her glasses. The entrance allotted to them had an accumulation of
ice, and they deemed it unsafe, at least since Dorothy Smith, in using it, slipped and
"ended up in the hospital with a back injury." (She and Gerald Morris were the two
Charging Individuals who were out sick the day of the second walkout.)
Under these restrictions, they had the feeling, as Kuklinski testified, that they were
being spied upon and that Respondent was out "to get something on us to get rid
of us." This gave them the jitters about sending their work on. Illustrative was an
instance in which they were not supplied with a "press" needed for a particular type
of bobber. As they were required to do, one of the girls had asked Joyce Maloney,
Floorladv Lucore's assistant, for a press, and she replied it was not used any longer.
Clara Schlotfeld testified that "my bobbers were so bad that the buttons would stick
down in the bobber. I was trying to pull them out with my teeth because they were
too short. I told Joyce about it and Joyce said that that stuff was in the warehouse
and I told her I didn't want to send them over like that, but Joyce said to send them
over. I kept tearing gross after gross of bobbers apart." Fearing to send on the
work in the shape it was in, Kuklinski began going through the boxes of one of the
other girls to finds the bad bobbers and discard them. Paul Erskine, the only one in
19 Kuklinski, asked to particularize on the "intolerable conditions" of their work, re-
ferred to the way "they laugh and talk about us."
PLASTILITE CORPORATION 195
the management hierarchy "that talked to us," observed Kuklinski at these labors
and asked her the reason. She replied that "we know what they are trying to do to
us and we are not going to send that work over like that," that the girls working on
those bobbers "can't get the work together [without] the press." Erskine asked her
to explain what she meant, and when she did, he located the press in a place of which
Joyce Maloney had been unaware, and it was brought over.
This last simply exemplified the trouble arising from the new restrictions and the
rigidity of their application. Kukhnski, the next morning, showed Erskine how good
the bobbers looked now ,that they were finally given the press, and told him "it's like
being in a concentration camp." He replied "he knew but he was in the middle, he
couldn't do nothing."
The above concerns the eight girls (the bobbers, pinners, and gluers) who had pre-
viously worked under Floorlady Lucore. As to Lola and Gerald Morris, who
operated the two machines in the room adjacent to Frances Lucore's department,
Lola was specifically prohibited from speaking to Mable, and the two were told they
could not leave the machines even to go to the restroom, that to attend to that need
they would have to rely solely on the break periods, which, they were told, would now
be 10 minutes, instead of 15. The limits of capacity to time these urgings being what
they are, Max Lucore, their previous supervisor, used to tend the machines for the
few minutes either of them might require for such a mission. Their new supervisor,
identified as Orville, refused to do so for them, but for the man who was put on
Gerald's machine when the latter became ill, he followed the practice of his predeces-
sor. Mrs. Morris also testified that in further contrast with before December 12,
"they had the doors and windows all open there, I have had to wear a coat at work
time, and it has made my husband ill and he has been off work since the 24th of
March and still not back to work." She also testified to having had an added duty
placed on her-picking up bobbers, which had not been required of her before, and
which too was not sought to be explained.
The Union on March 11 had sent Respondent a wire protesting that complainants
were "being subject to intollerable [sic] sweatshop conditions ... tantamount to con-
structive discharge." The protest went unheeded. Kuklinski testified the provoca-
tions mounted to the point where "everyday one of the girls was crying and upset,
we couldn't take it no more." There was no one they could effectively complain to,
since Louis and Lambach, the officers and owners with whom they had in the past
had easy communication, would not speak to them from the day they came back,
although they spoke to all the other girls, and, as previously mentioned, Erskine, while
agreeing with Mable that "it was ... just like being in a concentration camp," said he
was helpless in the matter because "he was in the middle." On March 25 the group
met and decided they would walk out in protest against these conditions. They did
so on March 26 at 3 30 p.m. (except for Dorothy Smith, who was out with her back
injury, and Gerald Morris, who had taken sick on March 24). Lola Morris, though
she had been at the meeting at which the decision was made, left 3 hours before the
agreed time in consequence of a fresh irritant which began the day before. Orville,
her supervisor, and the man who was put at her husband's machine, took to scraping
or "scratch[ing]" the bobbers against the floor near her. The harsh sound jarred her
nerves, and her entreaties to abate it met with "laughing and snickering." This went
on to 12:30, when, she testified, "my nerves gave away [sic] ... I couldn't take it."
She left for home and "afterwards the doctor had to put me on a nerve pill "
Respondent, next day, notified the eight in question that they were being given a
"one week disciplinary lay-off" for having left before quitting time "without giving
notice or reason to your supervisor " They in turn, in a wire which they prepared
under union auspices, told Respondent that "due to unsanitary, intolerable and dis-
criminatory working conditions . we find it beyond our endurance to continue
work, under these constructive discharge practices being exercised by the Company,"
and offered "to return to work if promises made in your letter of March 3, 1964 [the
original offer of reinstatement] are adhered to." Respondent replied:
OF COURSE RETURNING EMPLOYEES ENTITLED TO THEIR JOB
WILL BE RETURNED BY THE COMPANY TO SUBSTANTIALLY THE
SAME JOB AND WORKING CONDITIONS THEY LEFT DECEMBER 12,
1963, SO LONG AS THEY PERFORM THEIR WORK PROPERLY. PLEASE
RETURN BY EIGHT A.M. APRIL 3, 1964. [Emphasis supplied.]
On April 3 the employees were put back to their old working area under Frances
Lucore. They were warned that "the next time [they] walked off that was going to
be it, they weren't going to take [them] back " Respondent informed them it was
sending "five volunteers to ... what [they] called [their] concentration camp." The
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"volunteers," however, were not put under the restrictions that had been imposed on
the complainants, and as to the latter also, the restrictions, so far as the record shows,
were now lifted.20
E. Concluding findings
1. Introductory
The issues which concern the group actions are: (a) whether the walkout of
December 12 was a protected activity; (b) if so, whether the failure to reinstate the
complainants on application was a violation of their rights under Section 7; (c)
whether the conditions under which they were taken back on March 9 were discrimi-
natory; and (d) whether their 1-week disciplinary layoff for walking out on March 26
in protest over those conditions was a violation of their protected rights.
2. The original walkout as a protected activity
The event which precipitated the walkout was the discharge of Max Lucore. The
strike took on an added cause when, immediately after walking out, the employees
aired among each other various grievances on the job, which they had planned to
take up on Monday, and to reduce to writing at their meeting on Sunday. There is,
of course, no question about the protected character of a strike over grievances in
respect to working conditions as such, or over the discharge of a fellow worker. As
stated in N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F. 2d 941, 946 (C.A. 1);
If no unfair labor practice has been committed by the employer, a strike seeking
reinstatement may be only an economic strike, but it is nevertheless protected
activity. [Citing cases.]
Where the discharged worker is a supervisor, a strike to compel his reinstatement
is likewise protected, as long as the employees have a reasonable interest of their own
to protect thereby. Ibid. and cases cited; also N.L.R B. v. Phoenix Mutual Life
Insurance Company, 167 F. 2d 983, 988 (C.A. 7) (distinguishing on, that score,
N.L.R.B. v. Reynolds International Pen Company, 162 F. 2d 680 (C.A. 7) ); N.L.R.B.
v. Solo Cup Company, 237 F. 2d 521 (C.A. 8). This is so here. The employees had
a reasonable self-interest in (a) the retention of Lucore and (b) the manner of his
termination. As to (a), Lucore performed a function on which they depended for
making their quotas; he had been helpful in their work, and had invoked his knowhow
in defense of one of their ranks against an accusation of tardy production. As to
(b), the employees had a reasonable interest in whether the discharge was "fair" as
they saw it. A criterion which they thought "wasn't fair," however they conceived it,
could reasonably inspire "fear as to what might happen to them under similar circum-
stances." N.L.R.B. v. Solo Cup Company, supra, at 526 21 More especially is this
so when the subject that touched off the dispute culminating in Lucore's discharge-
working hours-was one with which any worker would naturally identify.
The walkout or strike was thus a concerted activity within the protection of
Section 7.
3. The nonreinstatement of complainants on application for their positions
Unlike employees who engage in a strike caused or prolonged by unfair labor prac-
tices,22 an "economic" striker forgoes his right to reinstatement on application if he
has meanwhile been permanently replaced on his job. N.L.R B. v. Mackay Radio &
Telegraph Co, 304 U.S. 333. However, in the absence of contrary evidence, it is
presumed that nothing has happened to defeat the striker's normal right to reinstate-
ment, and the claim to the contrary is an "affirmative defense," which the employer
has the burden of establishing. See New Orleans Roosevelt Corporation, 132 NLRB
248, 250 and court cases cited at footnote 3; Titan Metal Manufacturing Co., 135
NLRB 196, 211. Respondent has not done so here. As previously stated, there is no
support in the record for Fred Lambach's statement to Mable Kuklinski on Sunday,
December 15, in rejecting her request that he and Louis meet with the group, that he
20 The General Counsel's reservations on that score are treated in the section entitled
"The Remedy."
2i In that case (cited and quoted with approval in N L R B v. Puerto Rico Rayon Molls,
supra, at 946) the court upheld as protected activity a shutting off by four employees of
their machines in order to get an explanation for the discharge of a rank-and-file employee
and a supervisor
n Black Diamond S. S. Corporation v. N.L R B , 94 F. 2d 875 (C.A. 2), cert. denied
304 U S. 579
PLASTILITE CORPORATION 197
had filled all their jobs with a new crew. So far as appears, Respondent had up to
then taken on measures to fill the job of any striker except one-Mable herself, whose
job Respondent offered to Ethel Micek as an inducement to abandon the group, and
even there Micek's acceptance was not forthcoming until the next morning. Assum-
ing Respondent had lined up a new crew by then, it could hardly have deemed them
to be "permanent" replacements. Respondent could not have thought so and the
next morning have embarked on the course it did, beginning with instructions to
Micek to pick the cards of "good workers to be called back," with no limit on their
number, save that inhering in the very proscription of certain of the strikers as then
and there decided upon, and culminating in the reinstatement of 11, all of whom are
shown on one basis or another to have disassociated themselves from the group.
Such evidence as the record provides conceiving the number of new hiress on any
basis, whether temporary, permanent, or otherwise, consists of vague estimates given
by Micek and Crawford (in response to inquiries by me) as to the total number of
girls working on Monday and Tuesday. These estimates did not quite jell with the
number of "new faces" as Micek recalled them. That number would bring the totals
of new and old employees to well below the estimates made by her and her sister.
Our underlying difficulty is that we know nothing about the new hires, such as when
and how they were hired, and on what basis. Although Respondent alone possessed
the information which would give a reasonable degree of clarity to the very defense
on which it relies, it was content to leave the whole matter in the nimbus of uncer-
tainty prevailing at the conclusion of the General Counsel's presentation. This
hardly provided the showing needed for Respondent's own defense, from which one
could reliably conclude that the complainants were permanently replaced before
Respondent's receipt on Tuesday, December 17, of the Union's written request for
their reinstatement.
While the defense that the complainants were permanently replaced falls for
absence of the requisite particulars to support it, it would still fall even if it had
appeared that such new employees as Respondent hired were "permanent" ones. A
"permanent" new employee is not necessarily a "replacement." He may well be an
addition to the force. Such evidence as the record provides supports that hypothesis
for the new hirees, and there is none which contradicts it. That Respondent did not
dismiss a single employee to make room for the complainants on March 9 would
suggest an expansion in operations of no inconsiderable dimensions. Respondent is
shown to have needed the complainants before this, when it indicated its agreement
with Frances Lucore that it could use them and attributed the refusal to recall them
to the fear that "they would organize and cause another strike." The even earlier
need for them appears in Fred Lambach's statement to Max Lucore, only a week
after the rejection of their applications for reinstatement, that he wanted to "call all
the people up and have them come back to work." Portents of that need appear in
the facts, earlier mentioned, that the force by the very day the complainants' appli-
cations were rejected had expanded beyond its original size, and that 2 days before
this, when Respondent asked Micek to make the selection of "good workers to come
back," it placed no limits as to the number. The reasonable inference thus is that
Respondent refused to reinstate the complainants, not because it deemed them perma-
nently replaced but because it thus deemed them not "good workers to come back"
by reason of their militancy in respect to the exercise of their protected rights.
The defense, however, falls on a more basic ground, which transcends the question
of whether the jobs of the complainants had in fact been deemed permanently filled
prior to application. This is because well before then Respondent's action took the
strike out of the mere "economic" category. By then Respondent had infringed on
the employees' statutory rights in two respects: (a) it had offered Mable Kuklinski's
job to Ethel Micek as an inducement to abandon the strike, and (b) it stated as the
ground for refusing to meet with the group the next morning that their jobs had been
filled. Item (a), being a promise of individual favor to abandon a concerted activity
with the group, needs no elaboration. As to (b), Lambach, in saying Respondent
would not meet with strikers because their jobs were filled was in fact telling them
that the basic premise for a discussion of grievances with them, namely, the existence
of an employment relationship, had ended. Since, as indicated, that statement has
no support in the record and is refused by Respondent's actions beginning the follow-
ing morning, the conclusion is warranted that it was untrue. In advancing that as the
reason for rejecting the request to meet with the group to discuss their problems,
Respondent was in effect now conveying that they were discharged for having struck,
a matter brought home the more strongly by Lambach's further statement, when
Mable called him the second time on Sunday, that his father would not come down
Monday to talk with them because they had not come in to work on Friday. Respond-
ent at that point discriminated against the group so that they were all entitled to their
jobs back without regard to the intervening hirings that might take place. Black
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond S. S. Corporation, supra, footnote 22.23 In any event, the statement was
calculated to leave the impression that it would be futile for them to apply for their
jobs back, thereby equitably estopping Respondent from relying on hirings intervening
between then and the application for reinstatement as a basis for turning them down.
It is accordingly found that in rejecting the application of the complainants for
reinstatement, Respondent discriminated against them for having engaged in pro-
tected concerted activities, thereby infringing on their guaranteed rights in violation of
Section 8(a)( I) and discouraging membership in a labor organization, in violation of
Section 8(a) (3) of the Act.24
4. The discriminatory conditions on return
The refusal to reinstate them on application being unlawful as found, Respond-
ent was under a remedial obligation to reinstate them to their former position
without prejudice to seniority or other rights and privileges. Although Respondent
offered them the above in its letter of March 3, the actual conditions under which
they were returned hardly fulfilled their requirement. The eight other than the
Morrises were removed from their accustomed work areas and from their accus-
tomed supervisor. If, as Respondent told these girls, this was due to insufficient
room in the old quarters, it would have seemed "natural," 25 since Respondent in
its recall letter recognized their seniority, to have then asked for "volunteers" to go
there instead of waiting until the lid blew on March 26. But whatever might be
said for the removal as such, the limited capacity of the old quarters could hardly
account for the unaccustomed restrictions of movement placed on them (and the
Morrises as well), and not placed on the other employees. Respondent advanced
no explanation for any of these restrictions, which would seem to have been stretched
beyond considerations of efficient operation, such as confining the girls to the use of
the one entrance leading directly to their new quarters, forbidding them to leave
those quarters for any reason, even for one involving working necessities, such as
picking up equipment, and denying them the use of the tables on which to have their
lunch.
Since Respondent has not undertaken to explain or justify the restrictions on the
basis of operational considerations, it is vulnerable to the inference that they were
intended to serve another purpose. Deferring this last for the moment, it would
seem manifest that the conditions under which the complainants were taken back
went beyond being merely inadequate as a fulfillment of the reinstatement obliga-
tion.26 Even if the restoration be viewed as a new employment of persons not enti-
tled to reinstatement, Respondent was subjecting these persons to plainly dis-
criminatory working conditions. Not having proffered any explanation therefor,
Respondent's motive is to be appraised on the basis of the "manifest interest and
23 Though the complaint (supra, footnotes 1 and 3) does not specifically include the
December 15 conversations as among the violations, their legal significance bears on the
validity of Respondent's rejection of the reinstatement application here directly in issue,
and the occurrence itself is part of Respondent's course of conduct in coping with the
strike, which was litigated on a plenary basis. See American Newspaper Publishers As-
sociation v. N.L.R.B, 193 F. 2d 782, 798, 799-900 (C.A. 7), cert. denied as to this point,
344 U S 812.
24 The 8(a) (3) finding derives from the following: (a) the application that was rejected
was made by the Union, which, as appears from the events recited at the outset of this
Decision, had been a target of hostility and legally impermissible measures on the part of
the Respondent ; (b) independently thereof, the employees, by their concerted actions on
Thursday and Sunday, had constituted themselves as a labor organization within the mean-
ing of Section 2(5) of the Act. Faetfnders Detective Bureau, Inc., 133 NLRB 1332, 1343,
and cases cited.
The General Counsel also claims that the overtures regarding bonus made by President
Louis on December 12, when he asked the girls to come to work the following day, were
an offer of benefit, as an inducement to refrain from concerted activity. The evidence, in
my opinion, does not support that claim, and I find no violation in anything Respondent
did on December 12.
2J E. Anthony & Sons, Inc v. N.L.R.B., 163 F. 2d 22, 26 (C.A.D.C.), cert. denied 332
U S 773
26 On that score the conditions bear comparison to those held inadequate in Eastern Die
Company, 142 NLRB 601, 603.
PLASTILITE CORPORATION 199
purpose" 27 that such restrictions were calculated to serve. When it earlier acknowl-
edged to Floorlady Lucore its need for their services, it attributed its refusal to call
them back to the fear that they "would organize and cause another strike." The
isolation, the restriction, and the ostracism would be reasonably calculated to serve
the purpose of punishing them for their concerted actions in December, and elimi-
nating or minimizing their capacity to do what Respondent appreheneded by insulat-
ing them from the rest of the force, and either keeping, or leading them to believe
that Respondent was keeping, a watchful eye on them. Such being the intended or
the "natural and foreseeable consequences" 28 of the conditions, Respondent thereby
discriminated anew against them in violation of Section 8(a)(1) and (3) of the Act
(supra, footnote 24).
5. The second walkout and the 1-week disciplinary layoff therefor
As earlier stated, the General Counsel claims the walkout on March 26 was a
"constructive discharge" brought on by the discriminatory conditions. That is not
crucial to the evaluation of Respondent's conduct in suspending the complainants
for engaging in the walkout. The action was in protest over the conditions under
which they returned. As such it enjoyed the protection of Section 7, without regard
to the merits of the protest. The 1-week suspension for having engaged in it was
thus in clear violation of their rights under Section 7 This is so however else the
other issues are viewed, and even if Respondent's claim that it was given no prior
notification were not refuted by the Union's protest of March 11 and Mable Kuklin-
ski's "concentration camp" protest to Erskine. N.L.R.B. v. Washington Aluminum
Company, 370 U.S. 9. By suspending the complainants (other than Gerald Morris
and Dorothy Smith, who were then out ill) for engaging in the walkout, Respond-
ent discriminated against them in violation of Section 8(a) (3). Thereby and by the
threat to discharge them if they walked out again, Respondent interfered with,
restrained, and coerced them in the exercise of their guaranteed rights, in violation
of Section 8 (a) (1) of the Act.
The above would dispense with the need for determining whether the walkout
was a "constructive discharge," as alleged, except for certain items which project us
into the backpay remedy, warranting some comment here. Viewed as an independ-
ent item and apart from any other issue, the employees would normally not be
entitled to backpay for a period in which they voluntarily absented themselves even
if it be in protest against unfair labor practices, until they apply for reinstatement.
To take their absence out of the "voluntary" category so as to entitle them to reim-
bursement for that period, they would in the normal instance have been obliged to
demonstrate that the discriminatory conditions were, as their protest indicated, a
"constructive discharge," i.e., that the conditions complained of left them no real
choice. But taking the absence out of the voluntary category was Respondent's
immediately ensuing "one-week disciplinary layoff." This took the choice of whether
to cut that absence short out of their hands. It is true that they responded with an
offer to return conditioned on the abatement of the "intolerable" conditions of which
they complained. However, Respondent's own act of having already suspended
them prevents us from definitively determining whether the complainants' response
was but a countermaneuver or whether they would have come back earlier had
Respondent not taken the choice out of their hands. Since "it rest[s] upon the tort-
feasor to disentangle the consequences for which it [is] chargeable from those for
which it [is] immune," 29 the loss of pay for the week in question is attributable to
the employer who imposed it as a "disciplme"-illegally, as found.
As long as we are still on that subject, we veer from conventional sequence one
step further to indicate another reason why backpay for the 1-week suspension does
not hinge on whether there was a "constructive discharge" when the complainants
walked out. The return to the job on March 9, as already found, did not constitute
the full reinstatement the law requires, and hence did not operate to cut off the
backpay period. Eastern Die Company, 142 NLRB 601; United States Air Condi-
tioning Corporation, 141 NLRB 1278. That period runs until there was reinstate-
'Jeans (C New Oi leans RR Co v. Brother hood of Railway d Steaiuship Cie) is 2S1
US 548, 584.
29 Radio Ofcc, s' Union of the Coniinercial Telegraphers Union, AFL v NLRB, 347
U.S. 17, 52.
-° Judge Learned Hand in N L.R B v. Remington Rand, lite, 94 F. 2d 862, 872 (C A 3)
cert denied 304 U S. 576
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment in accordance with these requirements. The backpay period would thus encom-
pass the loss in pay for the week of the walkout 30 As to whether that terminal
point was achieved by the restorative action taken on April 3, while I would think
this was so except as to Kuklinski who has yet to be restored to the job she held on
December 12, the General Counsel, as earlier suggested, still raises questions con-
cerning the adequacy of these measures toward the remainder of the group, which
for the reasons stated in the ensuing section, I shall leave as open issues for appro-
priate resolution during the stage of compliance with the remedial measures here-
after to be recommended.
III. THE REMEDY
It has been found that Respondent discriminated against employees for engaging
in concerted activities protected by the Act and invaded these rights by other acts
and conduct. It will be recommended that they cease and desist therefrom under a
broad provision, since discrimination in reprisal for exercising rights guaranteed by
the statute goes to "the very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co.,
120 F. 2d 532, 536 (C.A. 4).
The discussion of remedial measures to redress the injury done is here somewhat
foreshortened by the comments in the preceding section on the duration of the
backpay period. The conventional period is from date of discrimination to date of
offer of full reinstatement to the former position or substantially equivalent position
without prejudice to seniority or other rights and privileges. As previously found,
Respondent discriminated against the strikers as a group on Sunday, December 15,
when it premised its refusal to meet with them the next morning on the untruthful
statement that their jobs had been filled, thereby in effect telling them that they were
discharged for having continued their strike beyond the day of the walkout. Never-
theless, their absence still had the character of a strike, and so backpay should begin
from the time they made an unqualified application for reinstatement. The General
Counsel claims the backpay should run from December 17, when Respondent
received the Union's letter. However, the letter gave Respondent leeway on that
score until the following day. That, in fact, is when the 10 complainants, who were
the residual group not reached in the chain of communication started by Ethel
Micek on Monday under Respondent's "good workers to come back" instructions
(except Vosburg who despite the call from Iris Life, abided by the Union's request
as made for the group) reported in a body, and were unequivocally turned down by
Respondent. While the matter is not altogether free from doubt, I would think
that, on balance, the equities favor Respondent on that specific item. Backpay will
accordingly commence December 18, 1963.
As to when the backpay period stopped, although this is normally accomplished
by an offer of full reinstatement with seniority and existing privileges, that is so on
the assumption that on acceptance by the employees the performance accords with
the offer. For the reasons stated in the preceding section, that was not the case
with the reinstatement given the complainants on March 9, and so the period runs
beyond that until the reinstatement obligation was fulfilled. On whether this last
was accomplished by the restorative measures of April 3, except for the fact that
Kuklinski has still not been restored to the job she held December 12, I am aware
of no evidence to impugn their adequacy except that Lola Morris testified to still
lingering disparateness in her (and as is inferred, her husband's) conditions from
those of December 12 31 But the complaint (in Case No. 17-CA-2425) has a
blanket allegation that Respondent "has ever since [March 26] failed and refused
to reinstate [the complainants] to their former or substantially equivalent positions."
BO That is so unless that loss can be branded as one "willfully incurred" within the
doctrine that entitles an employer to have such losses deducted from gross back-
pay in addition to actual interim earnings Phelps Dodge Corp v N L R B , 313 U S
177, 198. The losses sustained for that week are not open to characterization as
"clearly unjustifiable refusal to take desirable new employment" (id. at 199-200) that
that category contemplates
31 Her testimony would indicate that she has not been relieved of the newly imposed
additional duty of picking up bobbers , also, that Orville, her supervisor, in contrast with
the deference he pays to physiological imperatives in the case of the employee who re-
placed her husband at the machine during his illness, is still impervious to it when nature
makes similar demands on her (and presumably her husband). And there is the shortened
break period and also, as she claims, a spilling over of her workday several minutes beyond
quitting time The record does not lend itself to a definitive determination concerning
their significance on the issue of reinstatement.
PLASTILITE CORPORATION 201
My telegraphic inquiry to the General Counsel earlier alluded to (supra, foonote 2)
concerning "what this encompasses in light of restorative measures of April 3,"
brought a response from the General Counsel that he "contends that burden of
proof of sustaining this allegation has been sustained at least in part and particu-
larly with respect to complainants Mable Kuklinski and Lola Morris ." This is met
by a vigorous rejoinder from Respondent . The only item in possible impugnment of
the measures taken toward the others is that on their return they were warned that
another walkout would mean their discharge . But that, of course, is a limitation
on tenure of the kind that any warning of discharge for concerted activities would
be. Reasonably interpreted , the General Counsel 's blanket allegation would seem
to be an effort to preserve his position on the adequacy of the restorative measures
taken since April 3, without irrevocably committing himself thereon yet. His com-
plaint is dated April 15, and considering the time involved in preparing and clearing
such a document , one would assume that he had not yet made the kind of check
which is conventionally made at the more time-affording stage of compliance, and
that the allegation was intended to defer a definitive commitment on the adequacy
of the remedial measures until he has had the opportunity to make such a check.
Except in Mable Kuklinski's case, where the inadequacy of the reinstatement to
date is manifest , I shall make no finding concerning the adequacy of those measures
toward the others , including the Morrises (supra, footnote 31), leaving this item to
the compliance stage. Normally, these matters work themselves out in informal
compliance negotiations . In the few instances where this is not the case, the Board's
formal processes are available to resolve such issues as may ultimately crystallize.
Accordingly , the proposed order will provide that the backpay period will run from
December 18, 1963, to the date of reinstatement in accordance with prescribed reme-
dial requirements , and that Respondent effectuate full reinstatement of those for
whom it has not yet done so. Presumably , except in Kuklinski 's case, and perhaps
also in that of Lola Morris ( and possibly her husband 's), there will be no real dis-
pute over the completeness of the action taken on April 3. Even in respect to Kuk-
linski and the Morrises , a terminal date later than April 3 will presumably not
involve a greater money liability , since whatever the vulnerability of the reinstate-
ment measures on other scores, they did not affect the earnings . In summary, and
to make this item entirely clear , I shall repeat what I had occasion to say else-
where in a somewhat comparable situation: 32
The Recommended Order embraces the understanding that "whatever the
Respondent has already done toward compliance with the [Recommended
Order] will not be required to be redone and only such things, if any, as have
been left undone will be required to be done." (N.L.R B. v. Davis, et al.,
d/b/a Davis Lumber Company, Inc., 172 F. 2d 225 (C A. 5) ), with the issue
of whether Respondent has done or left them undone kept open for resolution
at the compliance stage.
The backpay will be in accordance with the standards enunciated in F. W. Wool-
worth Company , 90 NLRB 289, with interest as in Isis Plumbing & Heating Co., 138
NLRB 716.
On the basis of the foregoing findings and the entire record , I hereby state the
following:
CONCLUSIONS OF LAW
1. Respondent interfered with, restrained , and coerced employees in the exercise
of their rights under Section 7 of the Act, thereby engaging in an unfair labor prac-
tice within the meaning of Section 8(a)( I) of the Act, by the following conduct:
(a) Promising employees to bring their wages and conditions to those obtained
by employees at another plant under a union contract for the purpose of inducing
its employees to refrain from joining or affiliating with the Union.
( b) Instructing an employee to report to it on union activities of other employees.
(c) Offering and granting an employee, who was a participant with other employ-
ees in a concerted activity for mutual aid or protection , the higher paying job of
another such employee as an inducement not to participate in or to abandon such
concerted activity with her fellow employees.
(d) Discharging the complainants for having engaged in such activity or implying
to them that it has done so by untruthfully representing to them that their jobs have
been filled by newly hired employees , and advancing that as the reason for not get-
ting together and discussing their grievances with them.
31 Tidelands Marine Service, Inc., 140 NLRB 288, 327.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Failing and refusing to reinstate the complainants herein, who had engaged
in lawful concerted activities, on application therefor duly made by the Union on
their behalf, and thereafter taking them back under conditions differing from those
prevailing before they engaged in those activities, and discriminatory in character.
(f) Imposing a disciplinary layoff on complainants who walked out in protest
over the above conditions and warning them that they would be discharged if they
engaged in like concerted activity in the future.
2. By the conduct set forth in subdivisions (d), (e), and (f) of the preceding
paragraph, Respondent discriminated in respect to hire and tenure of employees
thereby discouraging membership in or activity on behalf of a labor organization,
and engaging in an unfair labor practice within the meaning of Section 8(a)(3) of
the Act.
3. The above unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
4. Respondent did not engage in any unfair labor practices alleged in the com-
plaint in consolidated Cases Nos. 17-CA-2317 and 17-CA-2425, other than as
above found.
RECOMMENDED ORDER
On the basis of the foregoing facts and conclusions and on the entire record, and
pursuant to Section 10(c) of the Act, it is recommended that Respondent, Plastilite
Corporation, Omaha, Nebraska, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promising wages or conditions equivalent to those granted by an employer
or employers under contract with a union as inducement to employees to refrain
from joining or affiliating with said Union or any other labor organiation.
(b) Instructing or requesting any employees to engage in surveillance or report to
it on the union actiivties of fellow employees.
(c) Discharging, suspending, laying off, or otherwise discriminating against any
employee, or threatening so to do, for engaging in a strike, walkout, or other con-
certed activity for mutlal aid or protection, or for otherwise exercising their rights
as guaranteed by Section 7 of the Act.
(d) Refusing to reinstate to their former or substantially equivalent positions, on
application therefor, employees who have engaged in such activity, as reprisal for
having done so.
(e) Offering or granting any employee the position of a fellow employee who has
engaged in such protected activity, or offering or granting a promotion, raise, or
other benefit as an inducement to refrain from participating in or to abandon par-
ticipation in lawful concerted activities with fellow employees.
(f) Discouraging membership in a labor organization by discriminating in respect
to the hire or tenure of any employees for joining or assisting a labor organization
or engaging with it in lawful concerted activity for mutual aid or protection.
(g) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action, which it is found will effectuate the poli-
cies of the Act:
(a) In respect to to those to whom it has not yet done so, effectuate immediate
and full reinstatement of the following employees to their former or substantially
equivalent positions, as held on December 12, 1963, without prejudice to seniority
and other rights and privileges: Mable Kuklinski, Nancy S. Manzer, Lola A. Morris,
Dorothy R. Vosburg, Gerald W. Morris, Clara Schlotfeld, Janet Manzer, Myrtle
Marshall, Frances Richardson, and Dorothy Smith.
(b) Make whole said employees for losses in pay sustained in consequence of the
discrimination against them, from December 18, 1963, to the date such reinstate-
ment has been or shall have been effectuated, as indicated in the portion of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to or assisting
in a determination of compliance with (a) and (b) above.
(d) Post at its plant copies of the attached notice marked "Appendix." 33 Copies
of said notice, to be furnished by the Regional Director for Region 17, shall, after
33 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner." In the further event that the Board's Order is enforced by a decree of
a United States Court of Appeals, the words used shall be "a Decree of the United States
Court of Appeals, Enforcing an Order."
PLASTILITE CORPORATION 203
being duly signed by the authorized representative of the Respondent, be posted by
it immediately upon receipt thereof and be maintained by it for a period of 60
consecutive days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by said
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the said Regional Director, in writing, within 20 days from the date
of this Decision and Recommended Order, what steps the Respondent has taken to
comply herewith.34
34 In the event that this Recommended Order is adopted by the Board, the notification
period will be 10 days from the date of the Order ; and in the event of court enforcement,
10 days from the decree.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to carry out the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, to any extent not yet done so, effectuate immediate and full rein-
statement to their former or substantially equivalent positions, without preju-
dice to seniority or other rights and privileges, of the following employees, who
were found to have been discriminated against for engaging in a lawful walk-
out in protest over a grievance, and WE WILL make them whole with interest
for all losses in pay sustained by reason of such discrimination:
Mable Kuklinski
Nancy S. Manzer
Lola A. Morris
Dorothy R. Vosburg
Gerald W. Morris
Clara Schlotfeld
Janet Manzer
Myrtle Marshall
Frances Richardson
Dorothy Smith
WE WILL NOT discharge , lay off , suspend, refuse to reinstate , or otherwise
discriminate against any employee for having engaged in a lawful strike, stop-
page, walkout , or other concerted activities protected by the National Labor
Relations Act.
WE HEREBY rescind any prior threat that we will do so , and WE WILL NOT so
threaten employees in the future.
WE WILL NOT offer or grant any employee the position of a fellow employee
or a promotion , raise, or other benefit as an inducement to refrain from par-
ticipating in or to abandon participation in a lawful strike or walkout or con-
certed activities with fellow employees.
WE WILL NOT promise wages or other benefits equivalent to those of an
employer or of employers under contract with Sheet Metal Workers' Local
Union No. 3, AFL-CIO, as an inducement to employees to refrain from joining
or assisting said union or any other labor organization.
WE WILL NOT request or instruct any employee to engage in surveillance or
report to us on the union activities of any fellow employees.
WE WILL respect the rights of all our employees to join or assist the Sheet
Metal Workers or any other labor organization , to bargain collectively through
it or any other labor organization of their choosing , or to engage in a lawful
strike, walkout , or stoppage or other lawful concerted activities for mutual aid
or protection , or to refrain from such activities.
PLASTILITE CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 731.